Ninth Circuit Rejects DOJ Bid on 20,000 California Ballots

A divided federal appeals court on Friday refused to make California set aside mail ballots from about 20,000 people the Justice Department calls “likely noncitizens.” The majority faulted the government’s list and its timing. The dissent faulted California’s reliance on voters’ own word. Both sides of the case point to a gap that only Congress can close.

Four days before the November 3 midterm election, the U.S. Court of Appeals for the Ninth Circuit denied the Justice Department’s emergency motion to force California and Los Angeles County to sequester vote-by-mail ballots tied to a federal list of more than 20,000 suspected noncitizens. The unsigned order in United States v. California, No. 26-7231, filed October 30, was joined by Judges Mark J. Bennett and Gabriel P. Sanchez. Judge Patrick J. Bumatay dissented.

The majority held that the government “has not made the required showing that such extraordinary relief, during an ongoing election, is clearly required by law.” It added that, on the district court’s findings, “there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system.” Judge Bumatay called the requested remedy “modest” and closed: “California decided long ago that aliens can’t vote in its elections. Today, the federal government merely seeks to safeguard that decision. We should have let them try.”

The ruling was the department’s second loss at the Ninth Circuit within a week, and it followed a 26-page order by U.S. District Judge David O. Carter on October 28 denying a temporary restraining order (TRO). In RSN’s reading, the three documents together say less about whether noncitizens are voting in California than about how badly both governments are equipped to find out.

What mainstream coverage misses

Most coverage has framed the case as a clash between the Trump administration and California. That is accurate as far as it goes. It leaves out two points that matter more for the long run.

First, the majority did not say California’s system is adequate. It said the remedy the government wanted is not found in the statute it relied on. The order states that “if the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts.” That is a statement about who decides, not about whether the problem is real.

Second, the dissent records a fact that got little attention: at oral argument, according to Judge Bumatay, Los Angeles County “could give no evidence that it independently verifies the citizenship of its voters” and “apparently relies only on applicants’ attestation of their citizenship.” Judge Carter’s order describes the same safeguards in neutral terms: an attestation of citizenship under penalty of perjury, signature matching on mail ballots, a process to cancel registrations “upon proof” of ineligibility, and criminal penalties for fraudulent voting. None of the steps the order lists checks a registrant’s citizenship against an outside record.

RSN’s analysis: the case exposed a system in which the state does not independently verify citizenship and the federal government could not show a court that its own check was reliable. Each side found the other’s method wanting, and on the record before the courts, each had grounds.

Background: from 190,832 to 20,000

The timeline below is drawn from Judge Carter’s order, which cites the parties’ filings.

May 8, 2026: According to the government’s declarations, a purchased copy of California’s voter file was obtained for review by Homeland Security Investigations (HSI), part of the Department of Homeland Security (DHS).
July 16: DHS wrote to California Secretary of State Shirley Weber that there “may be as many as 190,832 non-citizens registered to vote in California.”
July 23: Weber replied with “serious doubts” about the data and asked for DHS’s methodology. The court found DHS did not provide it.
August 5: The 90-day “quiet period” under the National Voter Registration Act (NVRA) began. During that window, states may not run systematic programs to remove voters from the rolls.
October 13: The Justice Department hand-delivered a letter and a password-protected thumb drive with the records of more than 20,000 people to Los Angeles County Registrar Dean Logan. It asked the county to review the list within 48 hours, segregate ballots of anyone not confirmed as a citizen, and hold off tabulating them.
October 15: The county and the Secretary of State refused. The department sued minutes after its 48-hour deadline passed.
October 26: A Ninth Circuit panel dismissed for lack of jurisdiction the department’s first appeal, which it had filed after the district court did not rule by the department’s requested deadline.
October 27–28: Judge Carter held a hearing and then denied the TRO.
October 30: The Ninth Circuit, now with jurisdiction, denied an injunction pending appeal, 2-1.

According to the government’s declarations as summarized by Judge Carter, the list was built in stages. U.S. Citizenship and Immigration Services’ fraud-detection directorate “enhance[d]” the voter data through a third-party analytics service, matched voters to immigration records “that may be the same individual,” screened out people shown as citizens in State Department and Social Security data, scored each match, and manually reviewed it. HSI then ran a quality review and an “enrichment process.” The government disclosed only the night before the hearing that the third-party service was LexisNexis.

Inside the district court’s findings

Judge Carter, a Clinton appointee, ruled against the government on nearly every point. He found that the United States likely lacked standing and a cause of action, that the federal ban on noncitizen voting (18 U.S.C. § 611) likely does not override California’s ballot procedures, and that the relief sought would likely conflict with the NVRA, the Voting Rights Act and the Civil Rights Act.

On reliability, he relied on a defense expert’s observation that the government provided “no error rates” or “validation against a reliable benchmark.” He also cited the Nevada episode: DHS first identified up to 15,903 registered voters there as noncitizens, cut the figure to 6,218, then to 185 after manual review, and Nevada officials later said all 185 were citizens. “Given the vagueness of Plaintiff’s descriptions of its procedures and the unreliability of its similar claims in other states, the Court cannot conclude that Plaintiff’s process is credible,” he wrote.

Los Angeles County’s own sample is also in the record. Of the 20,000-plus records, 7,035 had Los Angeles County addresses. In a sample of 200, 42.4% were active registrations, 42.9% were cancelled and 4.6% inactive; the order does not explain the remaining 10.1%. The county also reported that 71.2% of the list had never voted in past elections. Read plainly, a large share of the names may not correspond to anyone holding a live ballot.

The order also cites a federal whistleblower report, filed as an exhibit by the county, alleging that reviewers worked to a quota of five subjects an hour and 40 a day and had “only twelve minutes to determine if a subject is a U.S. citizen.” RSN has not seen that report and cannot verify it; it is an allegation in a court exhibit, not a finding.

In RSN’s view, Judge Carter went further than the ruling required. He devoted a section to what he called “a broad, ongoing pattern of attempted election interference by federal officials” and told the department that its warnings of possible aiding-and-abetting charges against election officials “must stop.” He ended: “If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger.” Judge Bumatay’s dissent objected that the district court had no authority to tell prosecutors what charges they may threaten. On that narrower point, RSN’s analysis is that the dissent has the better of it: charging decisions belong to the executive.

The appeals court majority: a question of authority

The Ninth Circuit majority was more restrained. It assumed, without deciding, that the United States had standing and a cause of action. It then held that the government had not met the “doubly demanding” standard for a mandatory injunction.

The core of the ruling rests on the Constitution’s Elections Clause, which lets states set the “Times, Places and Manner” of congressional elections while allowing Congress to “make or alter such Regulations.” Section 611 makes it a crime, punishable by up to a year in prison, for a noncitizen to vote in a federal election. The majority noted that “noticeably absent from the statute is an express preemption provision or any language setting forth regulations for how a state deals with citizenship challenges to vote-by-mail ballots,” and that nothing in it authorizes the Justice Department “to take charge of or intervene in a state’s administration of an ongoing election.”

The majority stressed the limits of its holding. In a footnote, it said it does not hold that § 611 “could never preempt any state actions or law,” only that the government’s use of it here did not fit the statute. It also invoked the Purcell principle, from Purcell v. Gonzalez (2006), under which federal courts should not change election rules on the eve of an election. Citing a Supreme Court order from September, the panel said that principle “applies with even greater force” when voting has already begun. Los Angeles County had mailed about 5.9 million vote-by-mail ballots and, according to its filing as cited by Judge Carter, had processed more than 331,000 by October 20.

Judge Bennett, who joined the majority, was appointed by President Trump. That detail matters for readers inclined to see the outcome as partisan. Two of the three judges were Trump appointees, and they split.

The dissent: a modest remedy and an unverified state system

Judge Bumatay’s dissent makes the strongest case for the government. He argues that § 611 is an exercise of Congress’s Elections Clause power, that federal criminal statutes routinely preempt conflicting state action, and that courts have long used their equitable powers to stop state election practices that violate federal law. The remedy, in his words, was “a simple command to stop commingling ballots,” which “would not cancel any vote but would allow time to verify the eligibility of suspected noncitizens.”

He also challenged the county’s evidence. The county, he wrote, “claimed that nearly 40% of a sample of suspected noncitizens from the federal government’s list had been born in the United States. But when the federal government ran the same sample through its systems, it confirmed that none were born here.” He added that the county did not rebut the federal results “beyond the say-so of the potential voters themselves.”

On feasibility, Judge Bumatay pointed to a declaration from a registrar in another county stating that “locating and segregating challenged ballots is entirely possible and not catastrophic,” and said the district court “didn’t even address” it. The majority answered in a footnote that the declarations conflicted and that Judge Carter reasonably credited Los Angeles County’s own technology official over “an elected Registrar from a different county.”

The urgency argument is real. As NPR reported, the department argued that once a mail ballot’s signature is verified, the ballot is separated from its envelope to protect secrecy, after which it cannot be retrieved. Bill Essayli, the senior federal prosecutor in Los Angeles, wrote on X, as quoted by Fox News: “Voter rolls were compared to USCIS immigration, Social Security, and passport records. We are not changing the rules mid-election, we are enforcing them.” USCIS is U.S. Citizenship and Immigration Services.

Counter-arguments and complications

The case against the government’s position is not only procedural. Several points cut against the department on its own terms.

Timing was within the government’s control. DHS raised the 190,832 figure in mid-July but sued on October 15, more than two months into the NVRA quiet period. Judge Carter called the claimed harm the product of the government’s “own neglect.” According to NBC News, the Ninth Circuit’s October 26 ruling described the emergency as “at least in part, a self-constructed one.”
The government has a remedy it is already using. Judge Carter noted that on October 21 the department charged 28 people for alleged § 611 violations, many of them registered Los Angeles County voters. Prosecution after the fact does not depend on sequestering ballots.
The list may sweep in citizens. The Nevada figures, the unexplained drop from 190,832 to roughly 20,000, and the county’s sample all point to false positives. Judge Carter wrote that naturalized citizens are the voters most at risk of being wrongly flagged.
The government also has an evidence problem it has not cured. On Friday, Chief Judge James E. Boasberg in Washington ordered the department to hand the list to the Coalition for Humane Immigrant Rights so the group could check it, the San Francisco Chronicle reported. Department lawyer Ty Trejo told that court: “If you are not a citizen, you are not allowed to vote. That’s all the federal government is trying to do.”

There are complications on the other side too. Rejecting a flawed list does not show that California’s rolls are clean. A system that relies on sworn self-attestation depends on registrants being right, and truthful, about their eligibility; the order describes no routine step that would catch one who is not. That gap is the subject of RSN’s 2016 report on a watchdog’s findings in Virginia, and of the call that year to settle the question of alien voter fraud with data rather than anecdote. A decade later, the data problem is the same.

This case also sits within a wider run of court losses for the department’s voter-roll strategy. Judge Carter wrote that the department has filed at least 31 suits seeking state voter rolls and, of 26 decided, has prevailed in “precisely zero,” citing a Brennan Center tally. RSN has covered two related rulings: the federal judge in Florida who dismissed a § 611 prosecution on constitutional grounds, and the court that vacated the department’s nationwide voter-roll program built on the SAVE database.

What is established, disputed and not established

Established (in the court record):

The Ninth Circuit denied the government’s emergency motion on October 30 by a 2-1 vote; Judge Carter denied the TRO on October 28.
Federal and California law both bar noncitizens from voting in federal elections.
California’s registration process relies on a sworn attestation of citizenship; the order lists no independent documentary check at registration.
The government’s estimate fell from as many as 190,832 to about 20,000 names, and the district court found the reduction was made “without sufficient explanation.”
The government did not provide error rates for its matching process.

Disputed:

Whether segregating the ballots was technically feasible before Election Day (conflicting registrar declarations).
Whether people on the county’s sample were U.S.-born (the county said nearly 40% were; the government said none were).
Whether § 611 can preempt state ballot-handling procedures at all. The majority left the question open in general and rejected it on these facts.

Not established:

How many people on the list are in fact noncitizens, and how many of them hold or returned a 2026 ballot.
Whether any noncitizen ballots would affect any contest.
The whistleblower report’s allegations about review quotas.
Whether the department has sought, or will seek, emergency relief from the Supreme Court. RSN could not confirm a filing as of Sunday, November 1.

What accountability would look like

RSN’s analysis: both governments owe the public better evidence, and Congress owes it a clear rule.

The Justice Department and DHS should publish their matching method, confidence thresholds and measured error rates, and explain how 190,832 became roughly 20,000. A list that cannot survive a special master’s review should not be sent to election officials under threat of prosecution.
California and Los Angeles County should say publicly what, if anything, they do to verify citizenship beyond attestation, and should report the outcome of any individual reviews of names on the list. Rejecting a bad list is not the same as checking.
The special master appointed by Judge Carter should report findings on the list’s accuracy in a public filing, so voters can see how many names hold up.
Congress, which both the majority and the dissent identify as holding the relevant power, should decide whether federal elections require documentary proof of citizenship or routine checks against federal records, and set the rule well before an election, not in the final two weeks.
Prosecutors should continue to bring individual § 611 cases where the evidence supports them, and report outcomes, including cases dropped because the defendant turned out to be a citizen.

The Ninth Circuit’s majority wrote that the government should take its case “to Congress, not the courts.” On that much, the dissent and the majority are closer than the 2-1 vote suggests. The question for the next Congress is whether it will answer before the 2028 election cycle begins.

Sources: Ninth Circuit order and dissent, United States v. California, No. 26-7231 (Oct. 30, 2026); Order Denying Temporary Restraining Order, No. 2:26-cv-12025-DOC-ADS (C.D. Cal. Oct. 28, 2026), via Just Security; 18 U.S.C. § 611; NBC News; NPR; Fox News; San Francisco Chronicle.

Featured image: James R. Browning U.S. Court of Appeals Building, San Francisco, headquarters of the Ninth Circuit. Photo by Sanfranman59, licensed CC BY-SA 3.0, via Wikimedia Commons.

How this article was made: Right Side News researched and drafted this article with the help of AI tools. Sources are linked so readers can check them. Spot an error? Tell us in the comments and we will correct it.